The Power of the International Criminal Court?

I have been focusing on digital threats to human rights and elections for much of 2017, but I recently returned to my research on victims and the International Criminal Court for a terrific seminar in Florence. The seminar, Power in International Criminal Justice: Towards a Sociology of International Justice, was hosted by CILRAP, the International Nuremberg Principles Academy, the UNDP, and several other organizations. Participants included sitting judges at international criminal tribunals and researchers from around the world (with a surprisingly large New Zealand contingent).

The videos of individual presentations from the seminar are available online.

The idea for the meeting and subsequent book is to step back somewhat from legal and normative studies of the ICC and other tribunals, and to gain some critical leverage on the international criminal justice field through a sociological analysis. I would add that there already are quite a few scholars who pursue sociological research on international criminal justice, but that the conversation among them could be deepened and could be more engaged with traditional legal scholars and practitioners. I hope that this project will advance that goal.

Power in International Criminal Justice workshop, Ospedale degli Innocenti, Florence

My contribution to the workshop was “The Agency of Victims: Empowerment and Disempowerment by the ICC.” You can see the video of my talk here. This paper is part of a larger research program that looks at how conflict survivors engage with, assess, and are affected by the ICC. In brief, I argued that the ICC can be empowering for some people, in some contexts, to pursue some justice aims. In my talk, I highlighted several ways that the Court can be disempowering: through actions that put at risk victims (especially potential witnesses and legal participants), or that can undermine or foreclose certain forms of political activity, and that do so with limited responsiveness to victims themselves.

The ICC’s staff and civil society supporters are by no means unaware that the Court poses risks to victims, and they do take steps to address some of these risks. One of my observations is that the ICC can often be disempowering to victims because of the Court’s weakness. By weakness, I refer in particular to its struggles to pursue investigations, protect witnesses, engage communities, and succeed in public relations contests, when it is operating in contexts where it seeks to hold powerful actors to account. Kenya is a clear case of this. The Court had significant difficulties operating in the country, and trial judges ultimately terminated the cases of Ruto and Sang and Kenyatta. The OTP claimed that its cases were undermined by witness intimidation and lack of cooperation by Kenyan state authorities. Now that the cases have collapsed, and neither trials nor reparations are forthcoming, I expect many victim participants might regret the time – and hope – they put into the ICC’s work.

The ICC fares much better when it operates in a country with government support (e.g. in Democratic Republic of the Congo, Ivory Coast, Uganda). Of course, in these situations there is widespread concern about the Court’s undermined and compromised independence.

Such concerns will certainly arise in the two new – and gutsy! – moves that the Court announced last week. The Prosecutor announced on November 3rd that she would seek authorization for a formal investigation in Afghanistan, which could entail investigations of US military activities. On November 9th, Pre-Trial Chamber III authorized an investigation into crimes committed in Burundi or by Burundian nationals since 2015. The judges noted  that, according to estimates, “at least 1,200 persons were allegedly killed, thousands illegally detained, thousands reportedly tortured, and hundreds disappeared.”

An investigation in Afghanistan will provoke the ire and backlash of the United States… or at least those (including the President) who believe the US should be above international rule of law. Expect a diplomatic s***-storm. By contrast, Burundi is a weak state with fewer resources to wage diplomatic war on the ICC. However, the government will make investigations in the country extremely difficult, and put potential witnesses or victim participants at risk. I think the Prosecutor is brave to take on these situations. And I expect both will reveal how, in practice, the power of the ICC is highly constrained.